Re Plowright and Secretary, Department of Family and Community Services - [2000] AATA 840

DECISION AND REASONS FOR DECISION [2000] AATA 840

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/494

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LEANNE PLOWRIGHT
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  First Respondent
  And              KENNETH PLOWRIGHT

Second Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date20 September 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member) CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances - Family Allowance – shared legal responsibility – court order as to residence and contact – apportionment considered – correct methodology of apportionment discussed
Social Security Act 1991
Re Dowling and Director-General of Social Services (1982) 4 ALD 443
Secretary, Department of Social Security v Field (1989) 18 ALD 5
Re Mrs B and Director General of Social Security and Mr B (1984) 6 ALD 609
Elliott v Secretary, Department of Social Security and Another (1996) 40 ALD 594
Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141

REASONS FOR DECISION

20 September 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Ms Leanne Plowright (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 26 November 1999 (T2), which affirmed a decision of an authorised review officer (ARO) dated 27 September 1999 (T16), affirming an earlier decision of an ARO dated 27 July 1999 (T9) which set the rates of Family Allowance payable for two children to the applicant and Mr Kenneth Plowright, the second respondent, at 69% and 31% respectively. For the purposes of this decision, Mr Plowright, who was joined as a party to the proceedings, is referred to as the second respondent.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with twelve exhibits, five lodged by the applicant (Exhibits A1-A5) and seven lodged by the first respondent (Exhibits R1-R7). In addition, the Tribunal heard evidence from the applicant, and the second respondent, Mr Kenneth Plowright. The applicant was represented by Mr D. Bulloch, of counsel, and the first respondent was represented by Ms A. Pugsley, a departmental advocate. The second respondent appeared in person.
The issue for the Tribunal is whether or not the proportions of Family Allowance paid to each parent have been correctly calculated.
history of the application
This matter concerns the apportionment of Family Allowance for the closed period, as agreed between the parties, from 23 July 1999 to 10 July 2000 in respect of the two children, Jessen and Aimee Lee.
On 20 April 1999 the Family Court of Australia issued a parenting order that stated (inter alia) (T4/14):
"…
(b) The said children have contact with the husband as follows:
(i)each alternate weekend, from 3.15 pm Friday until 8.45 am Monday, commencing Friday the 30th of April, 1999;
(ii)the husband do pick up the said children from [deleted] school and deliver them to the said school at the conclusion of contact;
(iii)during school holidays as follows:
(1)for the first week of each school holiday period in April, July and September/October, with such contact to commence at 3.30 pm on the final Friday of term and conclude at 5.00 pm on the Saturday – eight days later.
(2)for the purposes of contact in (1) above the husband shall pick-up the children from [deleted] school and deliver the children at the conclusion of contact at the (inside) Angas Street Police Station.
(iv)for half of each period of Christmas school holidays at times to be agreed between the parties upon the following conditions:
(i)during 1999 such contact is to include the period from 4.00 pm on the 24th of December 1999 until 4.00 pm on the 25th of December 1999;
(ii)the husband pick-up the children and deliver them at the conclusion of contact at the (inside) Angas Street Police Station.
(v)Such further and other contact as to be agreed between the parties.
…"
On 11 June 1999 a delegate of the first respondent decided to apportion Family Allowance between the applicant and the second respondent at the rate of 69% and 31% respectively. The applicant requested review of this decision and on 29 June 1999 (T8) the apportionment was changed to 94% for the applicant, 6% for the second respondent. The second respondent requested a review of this decision and on 27 July 1999 an ARO set that decision aside and reinstated the 69/31% apportionment (T9). This decision was affirmed by another ARO on 27 September 1999 (T16) and by the SSAT on 26 November 1999 (T2). The SSAT stated (inter alia) in its reasons for decision,
"…
… To the extent that the Family Court Order in the present case did not go beyond expressly providing for the residential arrangements of the children, in circumstances where the Court could readily have adopted a form of words to order exclusive legal or parental responsibility to one or other of Mr or Ms Plowright, the Tribunal is constrained from concluding other than that Mr and Ms Plowright retain joint legal responsibility for the day-to-day care, welfare and development of the two children.
Hence, within the meaning of section 5(2) of the Act, Aimee Lee and Jessen are dependent children of both Mr and Ms Plowright. It follows that both Mr and Ms Plowright qualify under section 838(1) of the Act for family allowance which, in the Tribunal's view, should be apportioned in accordance with the time the children reside with each parent. …
…"
The Tribunal notes that a subsequent order dated 8 October 1999 (A4) sets out which school the eldest child was to attend, and a further order on 30 November 1999 (ExhibitA5) sets out contact for the ensuing Christmas break.
On 3 August 2000 the Family Court, in making its order (Exhibit R7), noted and took into account the agreement between the parties that neither the applicant or the second respondent would apply to Centrelink for variation of the rate agreed on 10 July 2000 (being 60% to the applicant and 40% to the second respondent) for a period of three years thereafter.
applicant's evidence
The applicant told the Tribunal that she had expenses over and above those faced by the second respondent during the relevant period relating to the children. In particular, she detailed expenses relating to school and kindergarten fees, karate, driving to and from school, school lunches, hairdressing, clothes, shoes, excursions, lost library books, and child care which amount to approximately $119.20 per fortnight on the Tribunal's calculations. She also detailed her other expenditure including food of $200 per fortnight and income of $260-280 per fortnight from work, $270 per fortnight from family Allowance and $240 per fortnight of Sole Parent Pension.
second respondent's evidence
The second respondent told the Tribunal that he has to complete a round trip of approximately 160 kilometres to collect and drop off the children on the alternate weekends he has contact. He stated that he also buys clothes and shoes for the children and has contributed to school fees. He also detailed medical, sporting and food expenses related with his contact visits.
applicant's submissions
Mr Bulloch submitted, on behalf of the applicant, that the Tribunal should adopt the approach taken by the Tribunal in Re Dowling and Director-General of Social Services (1982) 4 ALD 443 and consider that the applicant was entitled to a higher percentage of the Family Allowance because her expenditure as the primary residential parent was comparably higher than that of the second respondent.
He submitted that Secretary, Department of Social Security v Field (1989) 18 ALD 5 does not relevantly consider the issue of apportionment, but is rather concerned with entitlement, meaning that Re Dowling remains the preferable approach.
first respondent's submissions
Ms Pugsley submitted, on behalf of the first respondent, that Field was preferable as a matter of law, as it was a decision of the Full Federal Court subsequent to the Tribunal's decision in Re Dowling. She further submitted that since the amendments made to Family Law in the 1990s the law had moved on from Re Dowling, such that "residence" as understood now only relates to where the children reside, and not to daily legal responsibility, which remains with both parents. She also submitted that it was more appropriate to consider the temporal rather than qualitative arrangements with respect to the children, both as a matter of law and policy.
She submitted that even were the Tribunal to consider relevant expenditure, it was clear that the second respondent had significant expenditure during the relevant period which would justify his percentage rate.
discussion and findings
As Mr Bulloch submitted, it is for the Tribunal to first consider whether or not the relative proportions of Family Allowance should be determined on a purely temporal basis (ie how much time each parent spends with the children) or on a temporal and qualitative basis (ie inclusive of how much each is required to spend on the children).
The Tribunal was referred to Re Dowling in support of a more global approach to apportionment and notes that this case was decided in 1982, thus preceding Field. The Senior Member in that case gives no particular statement of the law besides an indication that, consistent with the Department and the SSAT, he was considering representations as to expenditure. Senior Member Balmford considered Re Dowling in Re Mrs B and Director-General of Social Security and Mr B (1984) 6 ALD 609. On this Tribunal's consideration of Re Mrs B it is apparent that that case was more concerned with the question of care and control. The present matter is distinct in that it arises under the new regime of Family and Social Security laws. Care and control is not so much an issue given that, pursuant to the orders obtained in this case from the Family Court, such care and control (or day-to-day legal responsibility) remains with both parents.
The Tribunal would further concur with Mr Bulloch that Field is again concerned with the question of entitlement, rather than apportionment. Field was applied by Lehane J in Elliott v Secretary, Department of Social Security and Another (1996) 40 ALD 594. Again, this Tribunal considers that Elliott was more concerned with the threshold question of daily care and control.
In that regard, this Tribunal noted in Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141 at paragraph 21 (inter alia):
21. It is right that a person only receive Family Allowance where they are responsible for the day to day needs of a child and are exercising care, custody and control. Family Allowance is intended to help with all those things a child needs, such as clothing and food. Where a person for whatever reason, (whether it be contempt of a Family Court order or as a result of the child's desire), does not in fact fall within a person's day to day responsibility in terms of the provision of such basics as food and clothing or in other ways and means of exercising custody and control, it is not appropriate that they receive Family Allowance. …"

Consistent with this notion of meeting the actual daily care needs of the children, the Tribunal considers that the provision of food, shelter and clothing should also be the primary concerns of apportionment of Family Allowance. In Re Mrs B, Senior Member Balmford makes reference to AH Maslow's paper, A Theory of Human Motivation (1943) 50 Psychological Review 370-396, in which a hierarchy of human needs is set out: as follows:
"1.       Basic physiological needs, notably the need to satisfy hunger and thirst.
2. Safety needs, including the need for health, tranquillity, routine security and protection.
3.       The need to be loved and to belong.
4.       The need to be valued, both as to self-respect and as to the esteem of others.
5.       The need for self-realisation and accomplishment."

As a matter of social policy, it is appropriate that Family Allowance be apportioned in accordance with such goals. The Tribunal must consider the extent to which each parent, with daily legal responsibility, has responsibility for the hunger, thirst, health and safety of the children as the matters of most relevance in considering apportionment. At the most basic level, this Tribunal considers that Family Allowance should be directed to ensuring that children are fed, housed and, if applicable, receive necessary medications on a daily basis.
In respect of food and shelter, it is apparent that the fairest result in apportioning these things, will occur by looking at the time the children spend with each parent. Each parent will have to feed and house the children for the time they are with that particular parent, and the costs associated with such arise on an ongoing daily basis. In relation to clothing, one would expect that the applicant has greater expenditure given her greater level of daily care during the relevant period. However, the second respondent also indicated in evidence that he has some expenditure in this regard. Necessary transport costs obviously arise with children, and again the Tribunal considers that a temporal apportionment seems fair. The children have to be transported to school by the parent with residence during the week, but equally have to be picked up from school at the end of the week by the contact parent, and invariably will need to be transported during the weekend.
A temporal approach is also consistent with departmental policy (Exhibit R2). Whilst this Tribunal is not bound by such policy, it sees no reason to depart from the policy guidelines in this case. If a temporal approach were not adopted in cases such as the present one, the system would become unworkable. Not just administratively, but more importantly, in ensuring a fair result. In this Tribunal's opinion, it is fair in cases where a court order is in existence which gives joint legal responsibility and sets out the extent to which each parent will have the children residing with them, to apportion Family Allowance in accordance with the time stipulated for each parent in the court order. Even if one parent were to have expenditure over and above the time spent, apportionment according to time will, at the very least, mean that expenses as to food and shelter are fairly apportioned.
On the evidence before the Tribunal as to expenditure, it is not persuaded to alter the percentages for the relevant period. Both parents have food and shelter expenses, and comparable necessary transport costs. Given the brief opportunity the Tribunal had to assess each witness, it has not reached any firm conclusions as to credibility, but notes that Mr Bulloch did not seek to challenge the substantive aspects of the second respondent's evidence as to his occasional expenditure on clothing and some medications. Such expenditure appeared to be consistent with what one might expect a parent with 31% of the yearly residence of the children to have. The applicant clearly has a number of expenses over and above those associated with the children, and whilst these expenses place her in a precarious financial situation, they are not expenses directly relevant to the issue of apportionment of Family Allowance.
Taking into account the totality of the evidence as to expenditure, the Tribunal would still conclude that the percentages of 69% for the applicant and 31% for the second respondent were appropriate in the relevant period under review.
For the reasons given however, the Tribunal prefers to take a temporal approach and considers that, consistent with the court orders during the relevant period, the 69/31% apportionment was appropriate during the period under review.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  7 September 2000
Date of Decision  20 September 2000
Counsel for the Applicant              Mr D. Bulluch
Solicitor for the Applicant              Parks Legal Service Inc.
Counsel for the Respondent         Ms A. Pugsley
Solicitor for the Respondent         Centrelink
Counsel for the 2nd Respondent   Mr K. Plowright
Solicitor for the 2nd Respondent               In person